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Friday, May 30, 2014

In Stockwell v. City and County of San Francisco, ___ F.3d ___ (9th Cir. 4/24/14), the plaintiffs filed an ADEA and FEHA disparate impact age discrimination class action against the City and County of San Francisco (the "City"). The district court denied certification for want of commonality under Federal Rule of Civil Procedure 23(a)(2). The Ninth Circuit reversed, holding that the district court improperly relied on merits questions, rather than examining the commonality question.

The Court first reviewed general class certification principles, including the principle that demonstrating commonality "does not require proof that the putative class will prevail on whatever common questions it identifies." Slip op. at 7-12.

The Court then considered "the only question properly before [it] — whether the district court’s denial of the [plaintiffss'] motion for class certification was an abuse of discretion." The Court held that the district court abused its discretion by evaluating merits issues in denying certification "rather than focusing on whether the questions presented, whether meritorious or not, were common to the members of the putative class." Slip op. at 13-19. Here, the plaintiffs identified a "single, well-enunciated, uniform policy" that allegedly generated the alleged disparate impact.

In short, the officers are all challenging a single policy they contend has adversely affected them. The question whether the policy has an impermissible disparate impact on the basis of age necessarily has a single answer. To so recognize is in no way to approve of the statistical showing the officers have made as adequate to make out their merits case. Nor does identifying a common question sufficient for Rule 23(a)(2) purposes entail any disagreement with the City’s contention that proper statistical analysis would negate any disparate impact traceable to age — or, for that matter, to prejudge any other argument or defense the City may offer. The defects the City has identified may well exist, but they go to the merits of this case, or to the predominance question.... Given the interlocutory nature of this appeal, and its consequent limitation to class certification factors only, we may not consider the merits questions, even as an alternative ground for affirmance.

Slip op. at 18-19. The Court declined to address predominance because the district court did not rule on it, and the parties did not brief it on appeal. Slip op. at 19-20.

Thursday, May 29, 2014

The California Supreme Court this morning issued its decision in Duran v. US Bank, N.A. The decision reverses the judgment for the plaintiffs. I will have more later, but in the meantime, the Court's introduction reads as follows:

We encounter here an exceedingly rare beast: a wage and hour class action that proceeded through trial to verdict. Loan officers for U.S. Bank National Association (USB) sued for unpaid overtime, claiming they had been misclassified as exempt employees under the outside salesperson exemption. (Lab. Code, § 1171.) This exemption applies to employees who spend more than 50 percent of the workday engaged in sales activities outside the office. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785 (Ramirez).)

After certifying a class of 260 plaintiffs, the trial court devised a plan to determine the extent of USB's liability to all class members by extrapolating from a random sample. In the first phase of trial, the court heard testimony about the work habits of 21 plaintiffs. USB was not permitted to introduce evidence about the work habits of any plaintiff outside this sample. Nevertheless, based on testimony from the small sample group, the trial court found that the entire class had been misclassified. After the second phase of trial, which focused on testimony from statisticians, the court extrapolated the average amount of overtime reported by the sample group to the class as a whole, resulting in a verdict of approximately $15 million and an average recovery of over $57,000 per person.

As even the plaintiffs recognize, this result cannot stand. The judgment must be reversed because the trial court‘s flawed implementation of sampling prevented USB from showing that some class members were exempt and entitled to no recovery. A trial plan that relies on statistical sampling must be developed with expert input and must afford the defendant an opportunity to impeach the model or otherwise show its liability is reduced. Statistical sampling may provide an appropriate means of proving liability and damages in some wage and hour class actions. However, as outlined below, the trial court‘s particular approach to sampling here was profoundly flawed.

In Jong v. Kaiser Foundation Health Plan, Inc. (5/20/14) --- Cal.App.4th ---, Henry Jong worked as an outpatient pharmacy manager” (OPM) for Kaiser. After his separation, Jong sued Kaiser for unpaid off-the-clock overtime work. The trial court granted summary judgment for Kaiser, holding that Jong failed to raise a triable issue as to whether Kaiser knew or should have known that he was working overtime hours. The Court of Appeal affirmed, holding as follows:

The parties assumed that Jong must show that Kaiser knew or should have known that he was working off the clock, and the Court found "no reason to question this basic premise." Slip op. at 4-5.

Jong raised a triable issue as to whether he worked off-the-clock hours, but he failed to raise a triable issue as to whether Kaiser knew or should have known of that work. Declarations and deposition testimony of other OPMs that they worked off-the-clock hours did not raise such a triable issue. Slip op. at 5-10.

The Court noted in particular that:

Jong knew of Kaiser’s written policy that OPMs should be clocked in whenever they were working;

Kaiser always paid him for time he recorded on Kaiser’s recording system, including overtime hours;

Kaiser instructed him that he was eligible to work and be paid for overtime hours;

There was never an occasion when he requested approval to work overtime that was denied and there were occasions when he worked and was paid overtime even though he did not seek pre-approval;

He was not told by any of his managers or supervisors or any other Kaiser management personnel that he should perform work before he clocked in or after he clocked out or otherwise work off-the-clock;

And he signed the attestation form and understood it was an attestation that he would not work off-the clock.

Wednesday, May 28, 2014

I just received notification that the Supreme Court of California will release its decision in Duran v. U.S. Bank National Association tomorrow morning at 10:00 a.m. I will provide my analysis of the decision at the earliest opportunity.

In Urbino v. Orkin Services, 726 F.3d 1118 (9th Cir. 2013) [discussed here] we held that potential PAGA penalties against an employer may not be aggregated to meet the minimum amount in controversy requirement of 28 U.S.C. § 1332(a). The remaining issue in this appeal is whether a district court may instead exercise original jurisdiction over a PAGA action under the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. §§ 1332(d), 1453, 1711-15. We hold that CAFA provides no basis for federal jurisdiction.

The Court began by explaining CAFA original jurisdiction as follows:

CAFA confers original jurisdiction to the district courts "of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which any member of the class of plaintiffs is a citizen of a State different from any defendant." 28 U.S.C. § 1332(d)(2)-(A). The claims of class members may be aggregated to determine whether the amount in controversy requirement has been satisfied. Id. § 1332(d)(6). The class also must have at least 100 members. Id. § 1332(d)(5)(B).

The Court the held that a PAGA action does not satisfy the "class action" requirement of section 1332(d)(2)-(A). It reasoned that PAGA actions are not class actions under state law, nor do they arise under a state law that "closely resembles Rule 23 or is like Rule 23 in substance or in essentials." Among other differences between PAGA actions and class actions:

PAGA does not require notice to unnamed aggrieved employees;

Aggrieved employees may not opt out of a PAGA action;

A PAGA plaintiff need not prove numerosity, commonality, typicality, or adequacy of representation; and

If an employer defeats a PAGA action, unnamed aggrieved employees are not bound by the judgment, except as to PAGA remedies.

"In the end, Rule 23 and PAGA are more dissimilar than alike. A PAGA action is at heart a civil enforcement action filed on behalf of and for the benefit of the state, not a claim for class relief."

Tuesday, May 27, 2014

In Tiri v. Lucky Chances, Inc. (5/15/14) --- Cal.App.4th ---, the Court held that an arbitration agreement may delegate to an arbitrator the authority to decide whether the agreement is enforceable, and such a "delegation clause" is not procedurally unconscionable. The agreement at issue in Tiri provided:

The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable.

Slip op. at 2-3. The trial court found the arbitration agreement procedurally unconscionable, and the Court of Appeal reversed, holding as follows: Applicability of the Federal Arbitration Act (FAA) was immaterial because federal and state law incorporate the same policies regarding enforcement of arbitration agreements. Slip op. at 5-6. Under Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 72 (Rent-A-Center), which applies equally to cases arising under the FAA and the California Arbitration Act (CAA), "while courts may consider enforceability challenges specific to delegation clauses, the arbitrator is to consider challenges to the arbitration agreement as a whole." Slip op. at 6-7. Also under Rent-A-Center, a delegation clause is effective if: (1) its language is clear and unmistakable; and (2) it is not revocable under state contract defenses such as fraud, duress, or unconscionability. Slip op. at 7-8. The delegation clause here was clear and unmistakable. Slip op. at 7-9. The agreement was not revocable as unconscionable under state law. Although it was procedurally unconscionable (slip op. at 12-13), the delegation clause was not substantively unconscionable because it "is not overly harsh, and does not sanction one-sided results." Slip op. at 14. The plaintiff argued that other clauses of the arbitration agreement were substantively unconscionable, but this argument was unavailing. Under Rent-A-Center, the court may consider only the unconscionability of the delegation clause itself, and not the unconscionability of the arbitration agreement as a whole. Slip op. at 15-16. Finally, the Court considered whether delegation clauses are per se substantively unconscionable. Slip op. at 16-17. The Court concluded that any such per se rule would be invalid under AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___, 131 S.Ct. 1740 (discussed here). Slip op. at 17-18. Because the delegation clause was not substantively unconscionable, the trial court erred in denying the defendant's motion to compel arbitration. Slip op. at 18. Tiri v. Lucky Chances is available here.

Friday, May 23, 2014

In Hall v. Rite Aide Corporation (5/2/14, pub. 5/16/14) --- Cal.App.4th ---, the trial court granted certification of a suitable seating class, then granted the defendant's motion to decertify. The Court of Appeal reversed, holding that, under Brinker (discussed here), the trial court erred "because its decertification order was based on assessment of the merits of Hall's theory rather than on whether the theory was amenable to class treatment." Slip op. at 2-3.

Hall's proffered theory of recovery was that that the work of cashiers when stationed at their registered reasonably permitted the use of seats, and Rite Aid violated section 14 of the Wage Order by failing to provide seating.

Here, as in Brinker and its progeny, Hall alleged (and Rite Aid did not dispute) that Rite Aid had a uniform policy of the type envisioned by Brinker: Rite Aid did not allow its Cashier/Clerks to sit (and therefore provided no suitable seats for its Cashier/Clerks) while they performed check-out functions at the register. Hall's theory of liability is that this uniform policy was unlawful because section 14 mandates the provision of suitable seats when the nature of the work reasonably permits the use of seats, and the nature of the work involved in performing check-out functions does reasonably permit the use of seats. Hall's proffered theory of liability is that, regardless of the amount of time any particular Cashier/Clerk might spend on duties other than check-out work, Rite Aid's uniform policy transgresses section 14 because suitable seats are not provided for that aspect of the employee's work that can be reasonably performed while seated.

Slip op. at 18-19. The Court then noted that determining the merits of an action before certification actually results in prejudice to the defendant:

We read Brinker to hold that, at the class certification stage, as long as the plaintiff's posited theory of liability is amenable to resolution on a class-wide basis, the court should certify the action for class treatment even if the plaintiff's theory is ultimately incorrect at its substantive level, because such an approach relieves the defendant of the jeopardy of serial class actions and, once the defendant demonstrates the posited theory is substantively flawed, the defendant "obtain[s] the preclusive benefits of such victories against an entire class and not just a named plaintiff."

Friday, May 16, 2014

In Carmona v. Lincoln Millennium Car Wash, Inc. (5/9/14) --- Cal.App.4th ---, the plaintiffs filed a putative wage and hour class action against their employers. The trial court denied the employers' motion to compel arbitration under a pre-dispute arbitration agreement, and the Court of Appeal affirmed, holding as follows: The arbitration agreement was procedurally unconscionable: (1) it was a contract of adhesion that was presented on a take-it-or-leave-it basis; and (2) although the plaintiffs primarily spoke Spanish, the employers translated only part of the agreement into Spanish, leaving important sections in English only. The agreement was substantively unconscionable: (1) it lacked mutuality in that it required the employees to arbitrate, but allowed the employers to choose whether to arbitrate or go to court; and (2) the employers did not "justify the lack of mutuality with reference to business realities." The trial court did not abuse its discretion in determining that the agreement was "permeated by unconscionability" and refusing to sever the unconscionable provisions. The opinion is available here.